A Man's Home Is His Constitutional Castle

Henry Louis Gates Jr. should have taken his stand on the Bill of Rights, not on his epidermis or that of the arresting officer.

There are the things you can try when confronted by a cop, and there are the things that you can't—or had better not. Last Memorial Day, I was going in a taxi down to Washington, D.C.'s Vietnam Memorial when a police car cut across the traffic and slammed everything to a halt. Opening the window and asking what the problem was and how long it might last, I was screeched at by a stringy-haired, rat-faced blond beast, who acted as if she had been waiting all year for the chance to hurt someone. (She was wearing a uniform that I had helped pay for.) I often have a hard time keeping my trap shut, but I saw at once that this damaged creature was aching for trouble and that it would cost me days rather than hours if I supplied her with any back chat. (I think it was the mad way she yelled, "Because I can!" and "Because I say so!") She was so avid with hatred that I didn't even try to get close enough to ask or see her name or number. The whole thing, especially my own ignoble passivity, gnaws at me still when I reflect upon it. But it didn't, if you understand me, reinforce any humiliating folk memory. Indeed, I had more or less forgotten it until recently.

More recently, I was walking at night in the wooded California suburb where I spend the summer, trying to think about an essay I was writing. Suddenly, a police cruiser was growling quietly next to me and shining a light. "What are you doing?" I don't know quite what it was—I'd been bored and delayed that week at airport security—but I abruptly decided that I was in no mood, so I responded, "Who wants to know?" and continued walking. "Where do you live?" said the voice. "None of your business," said I. "What's under your jacket?" "What's your probable cause for asking?" I was now almost intoxicated by my mere possession of constitutional rights. There was a pause, and then the cop asked almost pleadingly how he was to know if I was an intruder or burglar, or not. "You can't know that," I said. "It's for me to know and for you to find out. I hope you can come up with probable cause." The car gurgled alongside me for a bit and then pulled away. No doubt the driver then ran some sort of check, but he didn't come back.

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In the first instance, I found again what everyone knows, which is that there are a lot of warped misfits and inadequates who are somehow allowed to join the police force. In the second instance, I found that a good cop even at dead of night can and will use his judgment, even if the "suspect" is being a slight pain in the ass. But seriously, do you think I could have pulled the second act, or would even have tried it, or been given the chance to try it, if I had been black? The "Skip" Gates question is determined just as much by what can't and what doesn't happen as it is by what regularly does. (Colbert I. King of the Washington Post once wrote a very telling column about how his parents instilled in him the need for punctuality. The underlining of their everyday lesson was that if you were late, you might have to run, and a young black man racing through the streets could well be detained before he reached his lawful destination.)

I can easily see how a black neighbor could have called the police when seeing professor Henry Louis Gates Jr. trying to push open the front door of his own house. And I can equally easily visualize a thuggish or oversensitive black cop answering the call. And I can also see how long it might take the misunderstanding to dawn on both parties. But Gates has a limp that partly accounts for his childhood nickname and is slight and modest in demeanor. Moreover, whatever he said to the cop was in the privacy of his own home. It is monstrous in the extreme that he should in that home be handcuffed, and then taken downtown, after it had been plainly established that he was indeed the householder. The president should certainly have kept his mouth closed about the whole business—he is a senior law officer with a duty of impartiality, not the micro-manager of our domestic disputes—but once he had said that the police conduct was "stupid," he ought to have stuck to it, quite regardless of the rainbow of shades that was so pathetically and opportunistically deployed by the Cambridge Police Department. It is the U.S. Constitution, and not some competitive agglomeration of communities or constituencies, that makes a citizen the sovereign of his own home and privacy. There is absolutely no legal requirement to be polite in the defense of this right. And such rights cannot be negotiated away over beer.

Race or color are second-order considerations in this, if they are considerations at all. I was once mugged by a white man on the Lower East Side of New York, and then, having given my evidence, was laboriously shown a whole photo album of black "perps" at the local station house. The absurdity of the exercise lay not just in the inability of a half-trained and uncultured force to believe what I was telling them, but in the certainty that their stupidity was helping the guilty party to make a getaway. Professor Gates should have taken his stand on the Bill of Rights and not on his epidermis or that of the arresting officer, and, if he didn't have the presence of mind to do so, that needn't inhibit the rest of us.

Christopher Hitchens is a columnist for Vanity Fair and the Roger S. Mertz media fellow at the Hoover Institution in Stanford, Calif.